Blasting federalism

Congress shouldn't override states on concealed guns

November 21, 2011

Over the past few decades, state after state has enacted laws allowing qualified citizens to carry concealed handguns. Today, Illinois is alone in refusing. But if the U.S. House of Representatives has its way, states will lose a big chunk of their authority on the issue. State discretion has been the friend of gun rights, but now gun rights advocates want to override state discretion.

A bill passed last week would require any state that allows the carrying of concealed weapons to honor permits that other states issue to their citizens. A traveler from Texas, say, would be entitled to pack his pistol on a visit to California — regardless of the preferences of Californians. (Because it doesn't issue such permits, Illinois would not be affected.)

Advocates compare these permits to driver's licenses, which are recognized across state lines. But Northwestern University law professor Andrew Koppelman points out this reciprocity came about by mutual consent of the states, not by federal decree.

States are free to do the same on guns. Most right-to-carry states, as it happens, already honor permits from some or all other states. California and New York, by contrast, restrict concealed weapons to licensed residents of their states.

There are legitimate reasons for states to exercise some care on the matter, since they differ in their eligibility rules — with some states barring minors, sex offenders or those convicted of domestic violence. In a federal system, people in different states are entitled to decide such issues within their borders.

Some states are notorious for lax screening that gives a free pass to convicted felons, drunk drivers and the mentally ill. But under the House bill, other states would have to let these demonstrably dangerous visitors tote their guns in public. The state with the loosest standards would get to impose them on everyone else.

That's not a healthy precedent. The federal government would be out of line to say anyone admitted to the bar in Rhode Island must be allowed to practice in Georgia. No one would suggest that a hunting license issued in Michigan should, by federal decree, be valid everywhere else.

Supporters, however, think right-to-carry is a constitutional right protected by the Second Amendment. But they haven't convinced the U.S. Supreme Court.

In its landmark 2008 decision upholding an individual right to possess guns for self-defense, Justice Antonin Scalia noted that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment."

How the court will eventually view such restrictions is an open question. In the meantime, the citizens of each state should remain free to set their own policy for residents as well as visitors. And Congress should butt out.